Update on Army policy on TDRL placement

The Army Physical Disability Agency has published a memorandum modifying the standard used in determining placement on the Temporary Disability Retirement List (TDRL). You can download the entire memo here: Medical Principles: Presumption of Soundness - Downloads - Physical Evaluation Board Forum . Though the memorandum clearly states that a member will be permanently retired unless it is shown by clear and convincing evidence that the members condition is likely to change over the next five years, I believe that there is a confusing and possibly erroneous explanation of this policy contained in the guidance.

The relevant portions are excerpted here:

"Part II: Placement on the TDRL
There are two types of PDES cases. The first type is the “legacy” case. In this type of case, the PEB assigns the disability rating. The second type of PDES cases is the “DES Pilot case” or other cases where the VA assigns the disability rating. Pending finalization of the TDRL Policy for DES Pilot cases and other cases where the VA assigns the disability rating, it appears the standard for placement on the TDRL (for these cases) will be that “a disability shall be considered unstable when there is clear and convincing evidence based on accepted medical principles that the VASRD rating percentage is likely to change within the next five years.”
Even though DoDI 1332.38 indicates the standard for placement on TDRL is “preponderance of the evidence,” as a matter of PDA policy, the standard for both types of cases will be “clear and convincing” as set forth in the draft policy...

With reference to the clear and convincing evidentiary standard, when the PEB determines the evidence does not support that the Soldier’s condition will change over the next five years so as to result in a change in VASRD rating, the PEB will recommend the Soldier be permanently retired.

Pre-decisional draft Temporary Disability Retirement List (TDRL) policy.
2. PROCEDURES
1.1. Unstable. A disability shall be considered unstable when there is clear and convincing evidence based on accepted medical principles that the VASRD rating percentage is likely to change within the next five years."

Regarding "clear and convincing evidence," this is one explanation:
"The 'clear and convincing' standard of proof is an intermediate standard of proof between 'preponderance of the evidence' and 'beyond a reasonable doubt,' see Addington v. Texas, 441 U.S. 418, 424, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979), and is used when the individual interests at stake are more substantial than those in a typical civil dispute." Olson v. Brown, 5 Vet. App. 430, 434 (Vet. App. 1993)

Here is another explanation (this case was later overturned, but not for any reason having to do with this definition): "Although "clear and convincing" evidence is not defined in reference (c), it is generally defined in law dictionaries as the degree [*865] of proof which will produce in the mind of a fact finder a firm belief or conviction." Sawyer v. United States, 18 Cl. Ct. 860, 864-865 (Ct. Cl. 1989)

What I have concerns about is this section:

With reference to the clear and convincing evidentiary standard, when the PEB determines the evidence does not support that the Soldier’s condition will change over the next five years so as to result in a change in VASRD rating, the PEB will recommend the Soldier be permanently retired.
I think this can be confusing, because the phrase "evidence does not support" could be misconstrued to mean that the PEB must determine that it is more likely than not that the condition will not change before recommending placement on the TDRL. If read and applied this way, that standard would require that the PEB find only by a preponderance that it will change in order to place the member on TDRL. The reality is that the PEB must find by clear and convincing evidence that the condition will change for rating purposes or else it must permanently retire the member.

One other point. It seems to me that the additional requirement that "there is clear and convincing evidence based on accepted medical principles" to place the member on TDRL means that there must be some citation to these principles. It is unlikely that the PEB will be able to find such evidence and will very likely not provide this evidence in its rationale. Therefore, in the Army, I think that TDRL determinations will be highly susceptible to challenge. Especially in these cases, if someone were to challenge a TDRL placement, I would strongly consider filing suit in Federal Court.
 
Jason Perry

Comments

medicalmystery

PEB Forum Veteran
Registered Member
#21
Jason, if you have two separate conditions: for example, PTSD and a stable condition with a rating greater than 30%, can you still be placed on TDRL solely because of the PTSD?
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
#22
Jason, if you have two separate conditions: for example, PTSD and a stable condition with a rating greater than 30%, can you still be placed on TDRL solely because of the PTSD?
Yes; the standard they will use in cases like this is to find permanent retirement if there are other conditions that are stable that equal at least 80%. This is because the maximum payable amount, being 75% (which would be rounded down from 80%), would not matter for compensation purposes if there are conditions that are stable and rated at 80%. The logic is, that in these cases, the stability or impact of the rating on the ultimate outcome for the unstable condition, would not impact the total compensation under any outcome (increase, decrease, or no change to the unstable outcome).
 

Rick Seekman

Registered Member
#25
My concern is that any/all MH issues are almost always given TDRL - especially PTSD, MDD, GAD. No matter how long the SM has been diagnosed and treated for these issues. Then, if the SM has other unfitting physical conditions that are "stable" for rating conditions, those are permanent.

So how come if the SM is placed on TDRL, and they have a combination of stable and unstable, then why are all their conditions up for reevaluation?

I mean, what's the point of even using "stable" for rating a physical unfitting condition, then if the SM has only one MH unfitting, regardless of time and treatment/diagnosis, they are placed automatically on TDRL.

Then, during TDRL reexam process, all the SMs conditions - stable and unstable - physical "stable" included - they are all reevaluated?

This seems disengenuous to me. Just another game.... Some kind of double standard....

That's what I don't understand - along with rarely allowing a stable rating for any/all MH issues.

It's hard enough to get the Army to come up with a correct MH diagnosis/treatment - let alone, get a proper/correct rating.

v/r,
nwlivewire
All mental health diagnosis are dependent upon what symptoms you have been diagnosed wiith. The symptoms, generate the diagnosis which is then evaluated by the PEB and the VA.
 

nwlivewire

PEB Forum Veteran
#26
All mental health diagnosis are dependent upon what symptoms you have been diagnosed wiith. The symptoms, generate the diagnosis which is then evaluated by the PEB and the VA.
Yes. I realize this. My point is that rarely is a MH issue rated as stable and the SM given PDRL - no matter how many years you have been diagnosed and have been treated for it. Even if diagnosed and treated for years, it's generally a TDRL, unless it falls into the category that Jason posted above.

nwlivewire
 

TSgt Twitch

PEB Forum Veteran
#27
Yes. I realize this. My point is that rarely is a MH issue rated as stable and the SM given PDRL - no matter how many years you have been diagnosed and have been treated for it. Even if diagnosed and treated for years, it's generally a TDRL, unless it falls into the category that Jason posted above.

nwlivewire
I think you may be falling into the "recency" category. Only in the last few years has there been a push to diagnose mental health conditions, and so it seems to those taking a snapshot of "all MH conditions" that they are all placed on TDRL. Additionally There may be a different more "nafarious" purpose for it so to speak. The dod/va has taken a lot of flak over the years for not taking care of our mentally ill vets, BUT they cannot force them to report for evals/treatment etc. But what they can do is hold TDRL/pay/benefits over their head as a way for them to come in and be evaluated. This might actually be a GOOD thing. Too many times in the past too many of our hero's have suffered in silence, or alone (yes sometimes by choice, but is it really a choice if they are not stable?). I think by placing them on TDRL they accomplish a few things. They give the "carrot" to encourage long term care AND they get a larger sample group to study more in-depth the effects of TBI/PTSD etc.
 

pittpan2005

PEB Forum Veteran
#28
I think you may be falling into the "recency" category. Only in the last few years has there been a push to diagnose mental health conditions, and so it seems to those taking a snapshot of "all MH conditions" that they are all placed on TDRL. Additionally There may be a different more "nafarious" purpose for it so to speak. The dod/va has taken a lot of flak over the years for not taking care of our mentally ill vets, BUT they cannot force them to report for evals/treatment etc. But what they can do is hold TDRL/pay/benefits over their head as a way for them to come in and be evaluated. This might actually be a GOOD thing. Too many times in the past too many of our hero's have suffered in silence, or alone (yes sometimes by choice, but is it really a choice if they are not stable?). I think by placing them on TDRL they accomplish a few things. They give the "carrot" to encourage long term care AND they get a larger sample group to study more in-depth the effects of TBI/PTSD etc.
And also an avenue to report the "politicized" benefit rendered to disabled Vets, only to potentially yank it away later. However, I do agree with you Twitch, if the carrot helps rather than hinder recovery, I am on board.
 

nwlivewire

PEB Forum Veteran
#29
And also an avenue to report the "politicized" benefit rendered to disabled Vets, only to potentially yank it away later. However, I do agree with you Twitch, if the carrot helps rather than hinder recovery, I am on board.
I get what you two are writing, but it just doesn't sit right in my head.

To lump all MH conditions, and, to lump all Sms/Vets into a TDRL category just to induce a "carrot" makes an assumption that ALL SMs/Vets need this inducement despite many SMs/Vets already pro-active and regularly seeking consistant care, and many - for several years.

Why are they all lumped together as if they are ALL needing to be dragged into their own cooperative care, as many have demonstrated just the opposite?

And how many more years - decades - will the DoD use this "carrot" approach to all MH issues as an excuse to further delay/deny the honest assessments and evaluations that have been laid on their table for all eyes to see?

When does this "carrot" become something other than a "carrot"? When the DoD decides it's not a carrot?

Methinks this one "carrot" is getting a bit rotten and a bit wrinkled and smelly.

Perhaps time to add other fresh "vegetables" to the DoD's basket of choices on MH issues.

V/r,
nwlivewire
 

TSgt Twitch

PEB Forum Veteran
#30
I get what you two are writing, but it just doesn't sit right in my head.

To lump all MH conditions, and, to lump all Sms/Vets into a TDRL category just to induce a "carrot" makes an assumption that ALL SMs/Vets need this inducement despite many SMs/Vets already pro-active and regularly seeking consistant care, and many - for several years.

Why are they all lumped together as if they are ALL needing to be dragged into their own cooperative care, as many have demonstrated just the opposite?

And how many more years - decades - will the DoD use this "carrot" approach to all MH issues as an excuse to further delay/deny the honest assessments and evaluations that have been laid on their table for all eyes to see?

When does this "carrot" become something other than a "carrot"? When the DoD decides it's not a carrot?

Methinks this one "carrot" is getting a bit rotten and a bit wrinkled and smelly.

Perhaps time to add other fresh "vegetables" to the DoD's basket of choices on MH issues.

V/r,
nwlivewire
Oh, I agree that it may go on too long, but i also acknowledge that at no time in modern history, has the VA/DOD healthcare complex ever done as much as they are doing now for the MH issues of our brothers and sisters. And if trends with every other project the government has ever worked on continues, it will go on as long as they want it to or as long as it funded the same way, and not one second shorter. ( to say it will go on longer than it needs to, but only to make it look good)
 

nwlivewire

PEB Forum Veteran
#31
Oh, I agree that it may go on too long, but i also acknowledge that at no time in modern history, has the VA/DOD healthcare complex ever done as much as they are doing now for the MH issues of our brothers and sisters. And if trends with every other project the government has ever worked on continues, it will go on as long as they want it to or as long as it funded the same way, and not one second shorter. ( to say it will go on longer than it needs to, but only to make it look good)
I do my best to have a balanced perspective on the issues, ie., looking at the progress and the good stuff being done, etc.

And trends are important to acknowledge!

That's often why we write what we write on this forum.

If it looks like a duck, walks like a duck..... then it needs to be called a duck.

It just might be a duck no matter who calls it something else.

V/r,
nwlivewire
 

Warrior644

PEB Forum Veteran
Registered Member
#32
Jason,

What's your insight in reference to the below information received as of 13 May 2013?:

The SPEBC Chief attorney at the NCRPEB stated that Ivan Walks and Associates (IWA) perform all TDRL 6-month PTSD evaluations for the USAPDA. That said, she commented the trend from IWA for a PTSD TDRL re-evaluation is resulting in a lower rating by the PEB.

Moreover, I was told that the IDES procedures are not currently used for rating of TDRL cases, meaning the PEB will determine the disability rating(s) for all Soldiers being removed from the TDRL.

To that extent, appreciate any feedback as to the current validity of the aforementioned comments mentioned by the NCRPEB SPEBC.

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer."

Best Wishes!
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
#33
Jason,

What's your insight in reference to the below information received as of 13 May 2013?:

The SPEBC Chief attorney at the NCRPEB stated that Ivan Walks and Associates (IWA) perform all TDRL 6-month PTSD evaluations for the USAPDA. That said, she commented the trend from IWA for a PTSD TDRL re-evaluation is resulting in a lower rating by the PEB.
I don't dispute the accuracy of what the Chief, Soldiers' Counsel stated is happening. However, in regards to IDES cases, IWA performing the exams and the PEB adjudicating ratings for IDES cases is clearly against regulations (specifically, DTM 11-105), and, therefore, is illegal.




Moreover, I was told that the IDES procedures are not currently used for rating of TDRL cases, meaning the PEB will determine the disability rating(s) for all Soldiers being removed from the TDRL.
Again, I don't doubt this is happening. I have seen it happen. But it is illegal.
 

NDBravehart84

PEB Forum Veteran
#34
Jason,

I am a Legacy Warrior... :( Quick run down...

PEB Determined/Rated me 90% and placed me on the TDRL:
9411 PTSD 70% (On Exam he displayed neuro-motor slowing, but alert and oriented and neatly groomed)
8045 TBI 40% (Residuals of Traumatic brain injury listed as cognitive disorder)
5203 10% (Clavicle-right, non union of)
5242 10% (Degenerative Arthritis of spine)

** 70 + 40 = 82 +10 = 84 + 10 = 86 = 90% **

My PEB results are dated early June 2012 and I retired 17 Sept 2012 after suffering a heart attack (which was not rated) in early May 2012.
My PEB/199 says IAW 38 CFR Part 4.129, your TDRL re-evaluation will occur within six to nine months of your separation from service.

I filled a BDD compensation claim with VA on my separation date and was rated by VA on 16 Jan 2013 @ 100%:
70% Cognitive Disorder residual of traumatic brain injury with post-traumatic stress disorder and major depression
(also claimed as mood disorder).
60% Coronary Artery Disease with valvular heart disease and history of myocardial infraction (coronary syndrome)
10% Cervical Degenerative Disc Disease (osteophyte protrusion and impingement)
20% Lumbar Spine Degenerative Disc Disease (arthritis, lateral recess & neural foraminal stenois, herniated discs,
lumbago)
10% Left Shoulder Degenerative Arthritis (minor) bicipital tenosynovitis
10% Right Shoulder Degenerative Arthritis, status post right clavical fracture and multiple arthrocopies ( bicipital
tenosynovitis & surperior glenoid labrum lesion)
10% Tinnitus
10% Left Arm Carpal Tunnel Syndrome (minor)
10% Right Arm Carpal Tunnel Syndrome (minor)

I also have been found to have Central Sleep Apnea and on a CPAP machine issued from VA, so an additional 50% rating should be forth coming.

Now the Questions: Since they (Army) has not followed up on the 6 month re eval and it is not likely they will meet the 9 month re-eval (IAW 38 CFR Part 4.129, your TDRL re-evaluation will occur within six to nine months of your separation from service) can I file for relief in a Federal Court to be placed on the PDRL?

I will be 59 in July, My health continues to slowly decline... I believe stress is the main influence on this.
VA continues to attempt to work with my neuropathy (which was claimed and not rated by the Army or
the Veterans Administration). My balance and my lack of mobility puts me in a wheelchair 3-4 months of the year. When I'm not wheelchair bound, I get around on forearm crutches or a cane as I can.

All of my condition are combat related and rated accordingly. My LOS is 13 years 4 month 7 days. My retired pay grade is O2E. My total service is 18 years 9 months 17 days. Any Insight would be greatly appreciated. Bravehart84:cool:
 

NDBravehart84

PEB Forum Veteran
#35
Since they (Army) has not followed up on the 6 month re eval and it is not likely they will meet the 9 month re-eval (IAW 38 CFR Part 4.129, your TDRL re-evaluation will occur within six to nine months of your separation from service) can I file for relief in a Federal Court to be placed on the PDRL? :(
 

Warrior644

PEB Forum Veteran
Registered Member
#36
Jason,

What's your insight in reference to the below information received as of 13 May 2013?:

The SPEBC Chief attorney at the NCRPEB stated that Ivan Walks and Associates (IWA) perform all TDRL 6-month PTSD evaluations for the USAPDA. That said, she commented the trend from IWA for a PTSD TDRL re-evaluation is resulting in a lower rating by the PEB.

Moreover, I was told that the IDES procedures are not currently used for rating of TDRL cases, meaning the PEB will determine the disability rating(s) for all Soldiers being removed from the TDRL.

To that extent, appreciate any feedback as to the current validity of the aforementioned comments mentioned by the NCRPEB SPEBC.

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer."

Best Wishes!
I don't dispute the accuracy of what the Chief, Soldiers' Counsel stated is happening. However, in regards to IDES cases, IWA performing the exams and the PEB adjudicating ratings for IDES cases is clearly against regulations (specifically, DTM 11-105), and, therefore, is illegal.

Again, I don't doubt this is happening. I have seen it happen. But it is illegal.
Jason,

Appreciate your feedback and continuing sound insight; thanks!

Thus, what's the legal recourse of action if the USAPDA is illlegally defiant?

Best Wishes!
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
#37
Jason,

Appreciate your feedback and continuing sound insight; thanks!

Thus, what's the legal recourse of action if the USAPDA is illlegally defiant?

Best Wishes!
Generally, two options- applying to the ABCMR or filing a lawsuit in the US Court of Federal Claims (though, it is possible to file a suit for equitable relief in US District Court- I tend to think this is not the best choice, though).
 

NDBravehart84

PEB Forum Veteran
#38
Jason,

I am a Legacy Warrior... :( Quick run down...

PEB Determined/Rated me 90% and placed me on the TDRL:
9411 PTSD 70% (On Exam he displayed neuro-motor slowing, but alert and oriented and neatly groomed)
8045 TBI 40% (Residuals of Traumatic brain injury listed as cognitive disorder)
5203 10% (Clavicle-right, non union of)
5242 10% (Degenerative Arthritis of spine)

** 70 + 40 = 82 +10 = 84 + 10 = 86 = 90% **

My PEB results are dated early June 2012 and I retired 17 Sept 2012 after suffering a heart attack (which was not rated) in early May 2012.
My PEB/199 says IAW 38 CFR Part 4.129, your TDRL re-evaluation will occur within six to nine months of your separation from service.

I filled a BDD compensation claim with VA on my separation date and was rated by VA on 16 Jan 2013 @ 100%:
70% Cognitive Disorder residual of traumatic brain injury with post-traumatic stress disorder and major depression
(also claimed as mood disorder).
60% Coronary Artery Disease with valvular heart disease and history of myocardial infraction (coronary syndrome)
10% Cervical Degenerative Disc Disease (osteophyte protrusion and impingement)
20% Lumbar Spine Degenerative Disc Disease (arthritis, lateral recess & neural foraminal stenois, herniated discs,
lumbago)
10% Left Shoulder Degenerative Arthritis (minor) bicipital tenosynovitis
10% Right Shoulder Degenerative Arthritis, status post right clavical fracture and multiple arthrocopies ( bicipital
tenosynovitis & surperior glenoid labrum lesion)
10% Tinnitus
10% Left Arm Carpal Tunnel Syndrome (minor)
10% Right Arm Carpal Tunnel Syndrome (minor)

I also have been found to have Central Sleep Apnea and on a CPAP machine issued from VA, so an additional 50% rating should be forth coming.

Now the Questions: Since they (Army) has not followed up on the 6 month re eval and it is not likely they will meet the 9 month re-eval (IAW 38 CFR Part 4.129, your TDRL re-evaluation will occur within six to nine months of your separation from service) can I file for relief in a Federal Court to be placed on the PDRL?

I will be 59 in July, My health continues to slowly decline... I believe stress is the main influence on this.
VA continues to attempt to work with my neuropathy (which was claimed and not rated by the Army or
the Veterans Administration). My balance and my lack of mobility puts me in a wheelchair 3-4 months of the year. When I'm not wheelchair bound, I get around on forearm crutches or a cane as I can.

All of my condition are combat related and rated accordingly. My LOS is 13 years 4 month 7 days. My retired pay grade is O2E. My total service is 18 years 9 months 17 days. Any Insight would be greatly appreciated. Bravehart84:cool:

Would It make sense to seek relief in court (I AM LEGACY)?

Or would it be a waste of time and energy (Have you ever handled anything like this)?

Is it possible to have a positive outcome (Based on my ratings, conditions, age)?

Is the Army exempt from the guidance in 4.129 (if not exempt how can they be taken to task for their failure)?

Are the any pending class action suits for "Legacy" soldiers that this would fall under (Obviously I would prefer to retain my 90% rating and be granted PDRL before the added stress kills me) or any TDRL VS PDRL with reduced percentages type cases?

Personally I would have preferred to be a IDES processed solider because even as imperfect as it is... Legacy processed soldiers are still coming out on the short end of the stick, only it's a shorter stick and hence the reason for IDES.

Any constructive thoughts would be greatly appreciated....
 

Warrior644

PEB Forum Veteran
Registered Member
#39
Jason,

Appreciate your feedback and continuing sound insight; thanks!

Thus, what's the legal recourse of action if the USAPDA is illlegally defiant?

Best Wishes!
Generally, two options- applying to the ABCMR or filing a lawsuit in the US Court of Federal Claims (though, it is possible to file a suit for equitable relief in US District Court- I tend to think this is not the best choice, though).
Understood, and thanks!

Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer."

Best Wishes!
 
data-matched-content-ui-type="image_stacked" data-matched-content-rows-num="3" data-matched-content-columns-num="1" data-ad-format="autorelaxed">

Online statistics

Members online
6
Guests online
53
Total visitors
59
Top